Musgrove v. USA

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION as to Leslie Dominick Musgrove: It is ORDERED that Magistrate Trumble's 11 Report and Recommendation is ADOPTED; Petitioner's 1 Petition is DENIED and DISMISSED and this matter is ORDERED STRIC KEN from the active docket of this Court. Petitioner's 12 Motion for Discovery is DENIED and the Clerk is DIRECTED to enter judgment in favor of the Respondent. This Court hereby DENIES a certificate of appealability. Signed by District Judge John Preston Bailey on 7/20/17. (copy Petitioner)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
LESLIE DOMINIC MUSGROVE,
Petitioner,
v.

Civil Action No. 2:15-CV-36
Criminal No. 2:11-CR-16-11
(BAILEY)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation (“R&R”) of United States Magistrate Judge Robert W.
Trumble. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge
Trumble for submission of a proposed R&R. Magistrate Judge Trumble filed his R&R on
March 13, 2017 [Crim. Doc. 551; Civ. Doc. 11]. In that filing, the magistrate judge
recommended that this Court deny petitioner’s 28 U.S.C. § 2255 motion (“§ 2255 Motion")
[Crim. Doc. 456; Civ. Doc. 11], and dismiss this action from the docket.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is timely
made. However, the Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of

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Hereinafter, this Court will solely reference the docket numbers of the Criminal Action.
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the findings or recommendation to which no objections are addressed. Thomas v. Arn,
474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver
of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce,
727 F.2d 91, 94 (4th Cir. 1984).
Here, objections to Magistrate Judge Trumble’s R&R were due within fourteen (14)
days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of
Civil Procedure. The petitioner timely filed his objections [Doc. 554] on April 27, 2017.
Accordingly, this Court will conduct a de novo review of the portions of the magistrate
judge’s R&R to which the petitioner objects. The remainder of the R&R will be reviewed
for clear error.
I. Background
On June 21, 2011, petitioner was charged with three counts of a nineteen count
Superseding Indictment: (1) Count One: Conspiracy to possess with intent to distribute
cocaine hydrochloride and methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A) and 841(b)(1)(B); (2) Count Three: Aiding and abetting the possession with
intent to distribute greater than 500 grams cocaine hydrochloride, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B); and (3) Count Fourteen: Aiding and abetting distribution of
greater than 5 grams methamphetamine (actual), in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B) and 18 U.S.C. § 2 [Doc. 82 at 1-2, 4, 15]. On February 21, 2012, a two-day
jury trial was held before this Court [Doc. 249], after which the jury returned a verdict of
guilty against petitioner on Counts One and Three and of not guilty on Count Fourteen

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[Doc. 278].
Petitioner then filed a pro se Motion to Dismiss his trial counsel, Barry Beck, Esq.
(“attorney Beck”), due to ineffective assistance and to have new counsel appointed to his
case on May 25, 2012 [Doc. 317]. Shortly thereafter, on June 7, 2012, attorney Beck was
terminated as petitioner’s counsel and Scott Curnutte, Esq. (“attorney Curnutte”), was
appointed as new counsel [Docs. 329 & 330]. Then, on July 13, 2012, petitioner filed
another pro se Motion [Doc. 338] requesting that attorney Curnutte be dismissed from his
case, which this Court denied by Order on July 20, 2012 [Doc. 341]. After an initial
sentencing hearing was continued while petitioner to allow petitioner time to prepare pro
se Objections to the PSR, this Court held a sentencing hearing on November 26, 2012 with
attorney Curnutte acting as petitioner’s counsel [Doc. 370]. After the hearing, Judge Bailey
sentenced petitioner to “360 months [of imprisonment] on each of Counts [One] and
[Three], to be served concurrently” [Doc. 372 at 2]. Additionally, Judge Bailey sentenced
Petitioner to four years of supervised release “on each of Counts [One] and [Three], all
such terms to run concurrently” [Id. at 3].
On November 28, 2012, petitioner filed a Notice of Appeal wherein he again
requested new counsel [Doc. 374]. On December 13, 2012, the Fourth Circuit appointed
Dorwin J. Wolfe, Esq. (“attorney Wolfe”), to represent petitioner during his appeal [Doc.
383]. On appeal, petitioner contended that the district court had erred by: (1) “denying the
last of several motions for a [trial] continuance;” (2) failing to compel the attendance of
three defense trial witnesses; (3) declining to instruct the jury regarding the mechanics of
a substantial assistance motion; (4) refusing his pro se request to call prosecution witness

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Shawn Rohrbaugh at sentencing, and (5) overruling his objection to a two-point obstruction
of justice sentencing enhancement. United States v. Musgrove, 545 F.App'x. 199,
200-02 (4th Cir. 2013). On October 30, 2013, the United States Court of Appeals for the
Fourth Circuit denied petitioner’s appeal in a per curiam opinion and affirmed petitioner’s
conviction and sentence. Id. at 200, 202-03. Subsequently, petitioner filed a petition for
certiorari to the United States Supreme Court, which was denied on June 9, 2014.
Musgrove v. United States, 134 S. Ct. 2739 (2014). The instant § 2255 Motion followed.
II. Legal Standards
a. Ineffective Assistance of Counsel:
“The essence of an ineffective-assistance claim is that counsel's unprofessional
errors so upset the adversarial balance between defense and prosecution that the trial was
rendered unfair and the verdict rendered suspect.” Hope v. Cartledge, 857 F.3d 518, 523
(4th Cir. 2017) (citing Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)). The United
States Supreme Court has set forth a two-pronged test for courts to use when determining
whether a convicted defendant’s claim of ineffective assistance of counsel warrants
reversal of the conviction. Strickland v. Washington, 466 U.S. 668, 687 (1984). “First,
the defendant must show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. Second, “the defendant must
show that the deficient performance prejudiced the defense.” Id. To satisfy the second
or “prejudice” prong, the defendant must show that “counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Consequently,

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if counsel’s errors have no effect on the judgment, the conviction should not be reversed.
See id. at 691. Absent certain situations where the reliability of a trial becomes so
questionable that the defendant need not show that he was actually prejudiced and
prejudice is instead presumed, a defendant must show that his counsel’s performance was
deficient and prejudicial to prevail on a claim of ineffective assistance of counsel in
accordance with Strickland. United States v. Ragin, 820 F.3d 609, 612 (4th Cir. 2016)
(citing United States v. Cronic, 466 U.S. 648 (1984)).
III. Analysis
While petitioner raises five grounds for relief in his Petition [Doc. 515], he only raises
objections to two of those points, which, in turn, this Court shall review de novo [Doc. 554].
A. Trial Counsel’s Purported Failure to Investigate:
First, Musgrove argues that his Sixth Amendment right to effective assistance of
counsel was violated when his trial counsel, attorney Beck, failed to conduct any pretrial
investigation of his case, subpoena phone records, and failed to discover exculpatory
evidence [Doc. 515 at 5]. In his Objections to the R&R, petitioner contends that, “[attorney
Beck] could not have adequately investigated the phone records as they were not
subpoenaed by him,” and, therefore, he was, “in no position to determine whether the
recordings were exculpatory” [Doc. 554 at 4].

Specifically, he contends that while,

“attorney Beck relied on ‘trial strategy’ as a reason for not subpoenaing the phone records
. . . Mr. Beck never provides detail or reason behind said ‘strategy’” [Id. at 3]. This is
patently false, and petitioner cannot meet his “reasonableness” burden imposed by
Strickland.

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Before examining the substance of petitioner’s claims, this Court begins with the
guiding principle that, “[C]ourts considering a claim of ineffective assistance should not
second-guess strategic decisions of counsel.” Hoots v. Allsbrook, 785 F.2d 1214, 1219
(4th Cir. 1986) (citing Strickland, 466 U.S. at 689–90). Indeed, the Supreme Court in
Strickland noted:
“[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations
on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's
judgments.”
Strickland, 466 U.S. at 690-691 (see also Wiggins v. Smith, 539 U.S. 510, 521–22
(2003)). As such, when assessing an investigation of evidence, this Court must conduct,
“[a]n objective review of [an attorney’s] performance, measured for ‘reasonableness under
prevailing professional norms,’ which includes a context-dependent consideration of the
challenged conduct as seen ‘from counsel's perspective at the time.’” Wiggins, 539 U.S.
at 523. It is clear, upon careful review of attorney Beck’s strategic decisions at the time of
trial and in the lead-up thereto, that his conduct was reasonable under Strickland.
This Court notes that on October 15, 2012, petitioner filed a series of pro se
Motions, including a Motion for Ineffective [Assistance of] Counsel [Doc. 351]. Attached
to that Motion is a four page letter from attorney Beck to petitioner, dated February 29,
2012, wherein Beck outlines, in substantial detail, his reasons for not subpoenaing the
phone records which are at issue here [see Doc. 351-3 at 1-3]. While this Court declines
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to reproduce the entirety of attorney Beck’s rationale herein, this Court is satisfied that with
the explanation offered by attorney Beck for his decision not to subpoena the phone
records. Additionally, on June 7, 2012, attorney Beck testified in person as to his rationale
for choosing not to subpoena the phone records at issue [Doc. 404]. During that hearing,
as noted in the R&R, attorney Beck testified:
“[T]here were a number of [trial] witnesses [who] testified that [petitioner had
access to] . . . various telephones. The [G]overnment did not introduce . . .
any phone records from the phone companies indicating that [these] phones
. . . belonged to . . . [petitioner] or someone else. That was a point that I
made at trial . . . to try to establish reasonable doubt. . . . I did not subpoena
the phone company records because, as a matter of strategy, . . . I felt it was
better to leave that question open as to . . . [why] the [G]overnment hadn’t
produced any records showing that those phones belonged to [petitioner].
[Regarding] the one phone record [that petitioner believes is exculpatory
evidence details] the phone number that the FBI said was . . . used to call
Mr. Medina and his cousin, Mr. Moreno, in Washington . . . . Mr. Moreno and
Mr. Medina said that those calls were from [petitioner] . . . . Now, [petitioner]
thinks that the records would show that [the] phone hadn’t been activated
yet[,] . . . and that would prove something. For one thing, it would prove the
FBI was lying and that . . . the [G]overnment was lying and everyone else
was lying. But that’s . . . [his ineffective assistance of counsel claim]. And, I
don’t think I’ve done anything wrong in that regard. . . It’s just incredible what
he’s contending as far as that phone number is concerned. . . . [But] those
phone records were not subpoenaed and they were not subpoenaed for a
reason.”
[Doc. 404 at 4-5].
Based upon the entirety of attorney Beck’s testimony offered that day, this Court
ruled that attorney Beck should be relieved of his obligations as counsel to petitioner and
denied petitioner’s pro se Motion for Ineffective Counsel, Motion for Violation of Due
Process and Violation of Speedy Trial [Doc. 357; Doc. 404 at 7]. Then, on October 22,
2012, this Court determined, based upon both attorney Beck’s letter and his testimony that
his “strategic decisions [regarding the phone records] . . . were reasonable.” [Doc. 354 at
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3-4]. This Court finds, again, that attorney Beck’s decision not to subpoena those phone
records was entirely reasonable, and was a strategic decision which should not be second
guessed or otherwise disturbed.
Petitioner has not remotely met the “performance” prong of the Strickland test
through his arguments, for he has not demonstrated that attorney Beck’s performance
“was deficient . . . [in] that counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 466 U.S. at 687.
Petitioner further fails to meet the “prejudice” prong of the Strickland test, for he has not
shown that attorney Beck’s conduct was so egregious that it deprived him of a fair trial
guaranteed by the Sixth Amendment. Petitioner argues that because attorney Beck, “could
not have adequately investigated the phone records as they were not subpoenaed by him,”
and that this, “cannot be said to have been sound and reasonable trial strategy” [Doc. 554].
Based upon attorney Beck’s entirely reasonable explanation for this decision, it cannot be
said that his conduct and performance at trial somehow prejudiced the defendant.
Consequently, petitioner’s argument is without merit and is denied.
B. Counsel’s Alleged Failure to “Raise a Fatal Variance”:
Next, petitioner alleges that his, “trial and appellate counsel were ineffective for
failing to object to a ‘variance’ in which ‘the evidence at trial establishe[d] facts materially
different from those alleged in the indictment.’ United States v. Kennedy, 32 F.3d 876,
883 (4th Cir. 1994)” [Doc. 554 at 4]. First, he argues that attorney Beck was ineffective
when he failed to object to a variance because:
“The [G]overnment used two distinct conspiracies to convict [him] of one
conspiracy [charge] . . . . The [G]overnment used the West Virginia
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conspiracy to convict [him] on the methamphetamine portion of the
conspiracy and . . . the Washington, D.C.[,] conspiracy to convict [him] on the
cocaine portion of the conspiracy.”
[Doc. 515-1 at 3]. In the R&R, Magistrate Judge Trumble notes that attorney Beck filed a
Motion in Limine [Doc. 256] requesting that the trial court bar, “the Government from
referring to, commenting about, introducing any documents or testimony, or presenting any
argument concerning [petitioner’s] alleged involvement with members of an illegal drug
distribution ring in the District of Columbia.” As such, Magistrate Judge Trumble found that
attorney Beck did not need to offer any further objections on the record. For his part,
petitioner argues that because, “a material variance [objection] cannot occur until after
evidence is presented at trial . . . counsel’s pretrial motion could not serve as a substitute
for a legitimate challenge to the material variance from the indictment” [Doc. 554 at 5].
Therefore, he argues that attorney Beck was ineffective for failing to object to the
prospective variance, yet cites no case law in support of this argument [Id.]. However, this
argument is misplaced.
First, this Court must clarify the Fourth Circuit case law concerning variances in
conspiracy prosecutions. “The question whether the evidence shows a single conspiracy
or multiple conspiracies . . . is one of fact and is properly the province of the jury. Whether
there is a single conspiracy or multiple conspiracies depends upon the overlap of key
actors, methods, and goals.” United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988).
In examining this finding, the jury’s verdict, “must stand unless the evidence, taken in the
light most favorable to the Government, would not allow any reasonable juror to reach such
a verdict.” United States v. Bollin, 264 F.3d 391, 405 (4th Cir. 2001). Furthermore, “even

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if the evidence established separate conspiracies, a variance is grounds for reversal only
if it infringed the defendant's substantial rights and thereby resulted in actual prejudice.”
Id. at 406 (internal quotation marks omitted).
Here, it is clear that petitioner cannot meet the burden imposed by Strickland to
demonstrate that attorney Beck was ineffective by failing to move for a variance after the
trial, given that he filed a Motion in Limine to seek the introduction of evidence regarding
separate conspiracies. As noted in the R&R, on February 13, 2012, attorney Beck filed a
Motion [Doc. 256] in Limine requesting that the trial court “bar[ ] the Government from
referring to, commenting about, introducing any documents or testimony, or presenting any
argument concerning [petitioner’s] alleged involvement with members of an illegal drug
distribution ring in the District of Columbia.” This Court denied that Motion by Order dated
February 27, 2012, finding that, “Count One of the Superceding Indictment alleges that the
conspiracy included ‘other persons known and unknown to the Grand Jury,’” and that the
Superceding Indictment further states that, “the alleged conspiracy began in or about
October 2010 and ‘continu[ed] to on or about April 9, 2011, in Hardy and Berkeley
Counties, within the Northern District of West Virginia, and elsewhere . . ..’” This Court
held that which attorney Beck sought to bar, “has a tendency to make existence of a fact
that is of consequence to the determination of this action more probable or less probable
than it would be without the evidence,” because of its relevance to charges against the
defendant contained in the Superceding Indictment [Doc. 269 at 3-4].

Accordingly,

petitioner’s allegation that attorney Beck’s filing the Motion in Limine, without more,
constitutes ineffective assistance is unavailing. This Court agrees with Magistrate Judge

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Trumble in that petitioner has not met his burden of proving that attorney Beck was
ineffective regarding the purported multiple conspiracies, and petitioner has failed to meet
his burdens under the Strickland two-pronged test.
C. Petitioner’s Motion for Discovery:
Petitioner also filed a Motion for Discovery [Doc. 555] on July 12, 2017. Additionally,
and in light of the above, this Court has carefully reviewed petitioner’s Motion for Discovery
and finds that the same is unavailing, as the facts and evidence before this Court are
sufficient to rule upon this Motion. Accordingly, petitioner’s Motion for Discovery is denied.
IV. Conclusion
Upon careful review of the record, this Court hereby ADOPTS the magistrate judge’s
Report and Recommendation [Crim. Doc. 551; Civ. Doc. 11] for the reasons stated
above, and the petitioner’s Objections [Crim. Doc. 554] are OVERRULED. Accordingly,
this Court hereby DENIES and DISMISSES the petitioner’s § 2255 petition [Crim. Doc.
456; Civ. Doc. 1] and this matter is ORDERED STRICKEN from the active docket of this
Court. Additionally, petitioner’s Motion for Discovery [Crim. Doc. 555; Civ. Doc. 12] is
DENIED. As such, this Court DIRECTS the Clerk to enter judgment in favor of the
respondent.
As a final matter, upon an independent review of the record, this Court hereby
DENIES a certificate of appealability, finding that petitioner has failed to make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
It is so ORDERED.

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The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: July 20, 2017.

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